When Mugalu* was adopted, his birth family says they were told they would still be able to speak to him regularly and he would come back for visits. “They said we would be one big happy family,” says his mother, Sylvia, wiping away tears.
But Sylvia, 40, has not seen her son since he was adopted from Uganda almost seven years ago by an American couple. She is now fighting to get her son back, taking her case to the high court in Uganda and exploring her legal options in the US.
Mugalu’s adoption was arranged through an organisation called Amani Ya Zion, which claimed to be a non-profit that “raises orphans and disregarded Ugandans to be leaders through true self sustainability”, in Kampala.
Sylvia’s family say they were led to believe by Amani Ya Zion that Mugalu, who was five at the time, was going to the US to get a better education, and would be in the care of a couple from Louisiana.
“They [Amani Ya Zion] said we were blessed to have this chance,” adds Sylvia, who works for a telecoms company, and lives in Kampala with her husband, Alex, and their toddler, Lenz.
Legal loopholes in the adoption system in Uganda have allowed people from overseas to adopt children – usually from poorer families – through unregistered children’s homes, and organisations that can operate with little scrutiny or oversight.
The Guardian has learned that Amani Ya Zion was registered as a retail business, run by Canadian Ross Duncalfe and his Ugandan wife, Angella Duncalfe (nee Nakalema).
Mugalu was adopted in 2013. That year saw a record 276 adoptions from Uganda to the US – the highest number in records dating back to 1999. During 2013 there was widespread use of a loophole which allowed international adoptions to be processed more quickly as “legal guardianships”.
'Constructive fostering' involves prospective parents appointing a third party to look after a child on their behalf
Legal guardianships were originally designed to protect children from losing their inheritance, but by the mid-2000s they were being used to skirt the then requirement for prospective adoptive parents from overseas to foster a child in-country for three years before getting an adoption order.
Mugalu’s adoption was processed as a legal guardianship.
In 2016, the loophole was closed, leading to a dramatic drop in adoptions – to just 26 to the US in 2018. The government also reduced the time prospective parents needed to spend in the country from three years to 12 months and began closing unlicensed children’s homes and orphanages.
But a new interpretation of the law has emerged. “Constructive fostering” involves prospective parents appointing a third party to look after a child on their behalf for a year. This could involve families who want to adopt giving power of attorney to the head of a children’s home, or even a lawyer, to look after the child in their absence.
The term constructive fostering was coined by Justice Moses Mukiibi in a 2017 adoption case, in which he held that “fostering a child for one year does not solely mean having physical custody … Support may be channelled through a parent or other relative of the child, or any other person having physical custody of the child”.
Mukiibi, who is head of the international crimes division of the high court of Uganda, has presided over a number of international adoption cases and adjudicated the adoption of Sylvia’s son. Justice Mukiibi did not respond to the Guardian’s request for comment.
The acting permanent secretary at the Ministry of Gender, Labour and Social Development, James Ebitu, said the country’s adoption law “does not provide for constructive fostering”. He said the government and the judiciary are “working together to address some of these issues”.
Dorah Andezu, director of programmes at Parenting Uganda, believes international adoptions should be halted until “we as a country clean up the system”, which she says can be driven by financial self-interest.
“Children are taken out of their homes without proper clearances. When things are done unethically there is a lot of exchange of money, because people have to get the paperwork and to get things moving very fast so that a child can be gotten out of the country,” she said.
James Kaboggoza, a former commissioner in the ministry of gender, gave the Guardian examples of times when birth parents had been paid off, where fake relatives had been brought to court to agree to adoptions, where social welfare reports written by unqualified people with inaccuracies had been presented as evidence, and where children’s homes had received cash for adoptions.
Mugalu’s 2013 court documents included the claim that Sylvia was dead. In documents related to the adoption of Mugalu’s half-sister, Nanoozi*, who was adopted a year earlier by another family, Alex was described as her uncle rather than biological father. It is unclear who filled out the documents.
Dorah Mirembe, the lawyer in Mugalu’s case, told the Guardian she had advised the prospective adoptive parents not to go ahead with the adoption because she had concerns about the process. She said she didn’t know the documents contained falsehoods. Michael W Magner, a lawyer representing the adoptive parents, denied his clients were given any such warnings.
Mirembe has previously processed adoptions for European Adoption Consultants (EAC) – a now-defunct adoption agency based in Ohio. A US employee at the agency pleaded guilty in August 2019 to bribery relating to activities in Uganda. Mirembe said “no charges whatsoever” were brought against her in connection to her work at EAC.
Sylvia and Alex say they had not understood the concept of adoption and believed the children were going to America for schooling only. Correspondence with Nanoozi after she arrived in the US reassured them that they would be in touch with their son too. But after Mugalu left, they never heard from him again. Contact with Nanoozi has also stopped. –
Andezu said many Ugandan parents do not understand the documents they are signing, and believe their child will come back to them after a period of time. Because Uganda is not a signatory to the Hague Adoption Convention, she said it is hard to keep track of adopted children once they leave the country.
Sylvia says that for the past six years, she has been trying to contact the adoptive mother through Facebook, but has been blocked.
The adoptive mother refutes a number of Sylvia’s claims. She wrote on social media that Mugalu had been adopted from an orphanage and that she believed his mother to be dead.
Sylvia says she met the woman and showed the Guardian a card from her that reads: “Mommy Sylvia, Thank you for loving Mugalu and for raising him up to be the smart young boy that he is.”
Magner said: “At no time did the adoptive parents have any reason to believe that the child had a living biological mother. The parents did acknowledge, with thank you cards, several of the women who helped with the children at the orphanage, each of whom carried the common honorific title of ‘momma’ or ‘mommy’, but no such person ever claimed to be the child’s biological mother. The adoptive parents had no interaction with anyone who claimed to be a birth mother.”
He added that his clients had first encountered Mugalu in a Ugandan orphanage in 2013. They were presented with a certified death certificate for his mother. Mugalu’s father, said Magner, signed an irrevocable release relinquishing all rights to his son.
We are confident that the application will succeed and Sylvia will have her son back
Dennis Adim Enap, lawyer
People interviewed by the Guardian confirm that Amani Ya Zion would hold “parties” when foreign guests visited. With the promise of help with school fees, parents were asked to attend with their children, who would be given T-shirts and asked to sing and dance for the guests.
One of the children who attended the parties was Success, who is now 17. She says she and other children would speak to people on Skype.
Success says a woman connected to the organisation told her to say that she didn’t have a mum or dad, even though both her parents are alive. Amani Ya Zion paid for one term of school fees for Success. In 2011, attempts were made to have her adopted to the US, but her father refused to consent.
Angella Duncalfe told the Guardian that she is “not still with Ross at this time”. She said she and Ross had arranged introductions between people from the US and local families, “to help people in need”. She said she had nothing to do with any adoptions, but knew that some of the children had gone to the US on the understanding that they would stay in touch with their birth families.
The Guardian has made multiple attempt to contact Ross Duncalfe without success.
Sylvia has now launched a civil case at the family division of Uganda’s high court to get her son back. The case has been crowdfunded by the advocacy group No White Saviors. She is also in touch with a legal firm in the US.
Her Ugandan lawyer, Dennis Adim Enap, is hoping the court case will overturn the legal guardianship order used to adopt Mugalu. If successful, it would set a precedent.
“We have two of the grounds required, and we are confident that the application will succeed and Sylvia will have her son back,” he said.
But previous efforts by other families have not succeeded.
Sylvia recounts a recent nightmare where Mugalu was drowning and she was unable to save him. “They didn’t keep their promises,” she sobs. “That’s the reason I want my kids back.”
* Names have been changed